Ratti Ram v. Bhakra Beas Management Board, Through Its Secretary
2012-04-18
DEV DARSHAN SUD
body2012
DigiLaw.ai
JUDGMENT : Dev Darshan Sud, J. - This writ petition has been preferred by the petitioner challenging Annexure P-9 which is a communication addressed by the Special Secretary to the Chief Engineer/Transmission System, BBMB, (Bhakra Beas Management Board) Chandigarh stating that the case of the petitioner with respect to his date of birth has been examined; the explanation furnished by the petitioner herein that his date of birth is 20.1.1958, according to the School Leaving Certificate and not 20.1.1954, on the basis of which, he joined the service with the Beas Construction Board (BCB for short) cannot be accepted. 2. It is undisputed before me that the petitioner joined service with Beas Construction Board, as a T Mate on 1.6.1973. It is also undisputed before me that thereafter he joined service with BBMB. However, what is in dispute is his date of birth. According to the respondents , his date of birth, as disclosed by him at the time of his initial point of entry in the service with BCB, is 20.1.1954 and the same date of birth has been recorded in the trade certificate which the petitioner obtained from the Rural Industrial Training Institute, Bilaspur on 30th December, 1969 submitted by him to the BCB as proof of his qualification and date of birth. Such date has been recorded on the obverse of this certificate certifying his period of training from July 1968 to June, 1970 and detailing his marks. The certificate on record of the service book of the petitioner is attested by the Sub Divisional Officer, TC Sub Division, BCB, (PW), Bilaspur. At the time of his entry in service with BCB, he disclosed his date of birth to be 20.1.1954, which was entered in the service book and which particulars were signed by the petitioner acknowledging and accepting the authenticity of the entries made including his date of birth. 3. The petitioner claims 20.1.1958 to be his date of birth on the ground that according to his school leaving certificate Annexure P-2 issued on 7.10.1972 his date of birth has been certified as 20.1.1958. Learned counsel appearing for the petitioner also relies upon Annexure P-10 which is the Parivar Register maintained by Gram Panchayat Bamta of village Nihal in District Bilaspur as 20. 1.1958.
Learned counsel appearing for the petitioner also relies upon Annexure P-10 which is the Parivar Register maintained by Gram Panchayat Bamta of village Nihal in District Bilaspur as 20. 1.1958. The form filled in by the petitioner at the time of his entry in service with BBMB, his date of birth has been entered as 20.1.1958 and it has been accepted by the respondents. Lastly, learned counsel has submitted that his elder sister Leela Wati who is working as Principle in Government School, Basantpur was born on 13.12.1954 and in these circumstances, he being younger to her, could not have been born on 20.1.1954. 4. Learned counsel submits that his explanation (Annexure R-16) letter dated 19.3. 2011 clearly states this fact. I t is further submitted that his father had already expired in the year 2000 and his mother had died when he was 3-4 years old, whereafter, his father remarried. He was taken away by his Bua (paternal aunt) who brought him up and there was no communication/contact with his father. His recruitment in the Beas Construction Board was no t on the basis of any actual verification of his date of birth but the fact that recruitment was made on the assumption of age of an incumbent on his physical appearance. 5. Learned Senior counsel, Shri Naresh Kumar Sood appearing for the respondents submits that a detailed inquiry has been conducted by the respondents and at every step the petitioner has given a chance of explaining the facts and an opportunity to present his case. He submits that on verification it was found that the stand adopted by the petitioner was incorrect and incompatible with the record . There could be no better proof that the date of birth of the petitioner was 20.1.1954 than the fact that this date of birth was voluntarily submitted and authenticated by him in the service record/particulars with the BCB where he disclosed this date and signed at the foot of the service particulars without demur. Learned Senior counsel then submits that there was no error as this is supported by the trade certificate issued by the Rural Industrial Training Institute, Bilaspur detailing the marks obtained by the petitioner and specifically stating his date of birth as recorded in school leaving certificate as 20.1.1954 and this has also been signed and authenticated by the petitioner himself.
Learned Senior counsel then submits that there was no error as this is supported by the trade certificate issued by the Rural Industrial Training Institute, Bilaspur detailing the marks obtained by the petitioner and specifically stating his date of birth as recorded in school leaving certificate as 20.1.1954 and this has also been signed and authenticated by the petitioner himself. Learned Senior counsel submits that there was no occasion or motive with the Institute to have entered a different date . The Institute was a part and parcel of the Government of Himachal Pradesh (Industrial Department). Learned counsel then submits that on the undisputed facts that the petitioner has been employed in the year 1973, he has put in more than 39 years of service till date. No Government service/service in autonomous, semi-Government undertaking is permitted unless the incumbent is a major. At the relevant point of time, when the petitioner entered in Government service which in this case is BCB, the age of the petitioners should and ought to have been 18 years, which could only be possible if he was born in 1954 and if the case was that he was born in 1958, then he would be minor when he entered such service. Taking the tenure of the service of the petitioner, he has already put in the maximum tenure of service upto 58 years as he has put in 39 years of service. Assuming that the person enters in service when he is 18 years of age, he can not put in more than 40 years of service if the age of superannuation is 58 years. There is substance in the submissions made by learned Senior counsel appearing for the respondents. However, I am not pronouncing on the authenticity of the date of birth of the petitioner herein or on the nature of inquiry as conducted. 6. Learned Senior counsel appearing for the respondents has relied upon the judgment of the Supreme Court in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 which holds that the date of birth cannot be authenticated by the school leaving certificate. In particular , learned Senior counsel emphasis that the Court holds: "14.......The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who have the date of birth is examined.
In particular , learned Senior counsel emphasis that the Court holds: "14.......The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who have the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents........" (at p. 1806-1807) Learned counsel appearing for the petitioner submits that the Supreme Court in Mohd. Yunus Khan v. U.P. Power Corporation Limited and others, (2009) 1 SCC 80 holds that it is the school leaving certificate which should be considered as being authenticated. In that case, the service particular of the petitioner as also one more employee had been mixed up. The Court held that since the inquiry held was deficient, no adverse order could be passed against the petitioner therein. Thereafter learned counsel relies upon the decision of the Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496 holding that reasons are an integral part of administrative justice and that order Annexure P-9 is bereft of reasons and requires to be struck down. Learned counsel relies upon the following passage from the judgment in Kranti Associates Private Limited's case: "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions.
Learned counsel relies upon the following passage from the judgment in Kranti Associates Private Limited's case: "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons' is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-37). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". (at pp 510-512) 7. These principles are well established. I cannot accept the submissions made on behalf of the petitioner in so wide a proposition that a meticulous in quiry has to be conducted. But nonetheless facts have to be established with certainty since it involves the superannuation of the petitioner and ante-dating his date of birth would of course result in loss to him. 8. From the record produced by the respondents, I do not find that the material cannot be relied upon.
But nonetheless facts have to be established with certainty since it involves the superannuation of the petitioner and ante-dating his date of birth would of course result in loss to him. 8. From the record produced by the respondents, I do not find that the material cannot be relied upon. Since an inquiry has been conducted by the respondents from all possible sources and the petitioner has also given an opportunity to explain his position, however, considering the fact that the case of the petitioner is that his elder sister Leela Wati was born in December 1954 and in this event, he can not have been born in January, 1954 of the same year, as also the fact that the school leaving certificate in which his date of birth has been recorded as 20.1.1958, this writ petition is disposed of with the directions that the respondents will conduct an inquiry into the facts as to whether (a) Smt. Leela Wati was the elder sister of the petitioner and in case she was born on 13.12.1954 then obviously the date of birth of the petitioner as 20.1.1954 would be a physical impossibility; (b) whether the school leaving certificate issued by the school authorities is authentic; (c) the fact that the petitioner himself had disclosed his date of birth to be 20.1.1954 in the service book maintained by the Beas Construction Board which was later on transferred to the Bakhra Beas Management Board and which record has been signed by the petitioner (d) whether the trade certificate produced on record as issued by the Rural Industrial Training Institute, Bilaspur also shows the same date of birth as disclosed by the petitioner i.e. 20.1.1954 is the correct date and the basis on which the petitioner submitted this to the Institution at the time of his ad mission for training. These facts will be ascertained by the respondents herein for which a chance will be given to the petitioner to be heard to place on record such documentary material as may be deemed necessary for determining the controversy.
These facts will be ascertained by the respondents herein for which a chance will be given to the petitioner to be heard to place on record such documentary material as may be deemed necessary for determining the controversy. Since the petitioner joined service in the year 1973 with Beas Construction Board, in which event, if his date of birth is accepted as 1958 his age at the time of entering into the service would only be 15 odd years, at this stage, no action can be taken against him but at the same time, the petitioner cannot be allowed to take unfair advantage of long tenure of service. This fact also requires to be probed. 9. The petitioner shall appear before respondent No. 2 on 2nd May, 2012 and the entire inquiry be completed on or before 30th June, 2012 . Till the final order is passed by the competent authority, the petitioner shall not be superannuated from the service. Writ petition stands disposed of. I have not expressed my opinion on the respective cases put-forth by the petitioner or the respondents. The decision taken by the competent authority will be on its own facts an d circumstances of the case.